CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 avril 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 21863/93                       by Stefan Karl Jørgen TRØBER                       against Norway         The European Commission of Human Rights (Second Chamber) sitting in private on 5 April 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 13 June 1988 by Stefan Karl Jørgen TRØBER against Norway and registered on 17 May 1993 under file No. 21863/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant is a Norwegian citizen, born in 1947. He is divorced and his former wife has sole custody of their two sons, born in 1975 and 1979 respectively. When introducing his application the applicant was serving an eleven year prison sentence in Norway. He has now been released on probation and resides in Oslo.         On 19 December 1986 the applicant was arrested, suspected of having been involved in large scale drug trafficking together with a number of other persons. The case attracted the attention of the media and the case was followed by several newspapers which published articles concerning the ongoing investigation, copies of which have been submitted to the Commission.         By indictment of 5 August 1987 the applicant was charged with four counts of drug trafficking contrary to section 162 of the Norwegian Penal Code (straffeloven) and two counts of illegal threats contrary to section 222 of the Penal Code. Furthermore he was charged with one count of illegal possession or use of narcotics contrary to the Medicament Act (legemiddelloven) and two counts of offences against the foreign currency exchange legislation. The applicant was one of eight accused who were all assisted by counsel. The case was heard in the Agder High Court (Lagmannsrett) sitting with a jury.         By judgment of 9 October 1987 the applicant was found guilty of seven of the charges brought against him whereas he was acquitted of one count of drug trafficking and one count of illegal threats. He was sentenced to eleven years' imprisonment and the sum of 100,000 NOK, corresponding to the presumed profits gained through the illegal acts, was confiscated.         On 22 October 1987 the applicant applied to the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) for leave to appeal to the Supreme Court which is competent to examine questions concerning alleged procedural errors and sentence but not the question of guilt. The applicant's appeal was exclusively directed against the sentence, which the applicant found to be too severe, whereas he did not allege that any procedural errors had been committed.         On 19 November 1987 the Appeals Selection Committee refused leave to appeal. The applicant was informed hereof on 17 December 1987.         On 19 April 1988 the applicant requested the High Court to reopen his case. However, the request was rejected on 5 August 1988. The applicant's appeal against this decision was rejected by the Appeals Selection Committee of the Supreme Court on 11 November 1988.         Following the High Court's judgment of 9 October 1987 the applicant was transferred, on 14 October 1987, to Ullersmo State Prison. In April 1988 he was transferred to Trondheim District Prison as the prison authorities had found reason to believe that he planned an escape from Ullersmo. In June 1988 he was transferred to Oslo District Prison and, on 15 June 1988, back to Ullersmo. On 30 November 1988 he was sent to Sem District Prison, on 23 February 1989 to Drammen District Prison and from there back to Ullersmo where he arrived on 28 June 1989. It appears that the applicant then remained at Ullersmo until spring 1992 when he was transferred to Krogsrud prison. He remained there until his release on probation in April 1994.         While the applicant stayed at Oslo District Prison in June 1988 he submitted, on 13 June 1988, a letter to the Commission in which he made a number of complaints in respect of his trial. The Commission's reply of 28 June 1988 addressed to the applicant at Oslo District Prison was redirected to him several times as a consequence of his transfers to other prisons and it did not reach him until 14 March 1989 when he was placed at Drammen District Prison.         Following his return to Ullersmo in June 1989 the applicant was immediately placed in a security wing pursuant to a decision of the prison director which read as follows:         (translation)         "(The applicant) serves a sentence for very serious       narcotics offences having obtained, kept and imported large       quantities of narcotic substances.         On the basis of information from various sources and       certain findings in prison in 1988, there were clear       reasons to believe that an insurrection and escape from       Ullersmo State Prison was imminent. Together with five       other inmates (the applicant) was moved from Ullersmo to       another prison. From the information obtained it was       considered most likely that (the applicant) belonged to       those who stood behind these plans.         Furthermore all inmates started a `sit-down' strike in       November 1988, i.e. they refused to work or to follow the       educational offers.         Information was received from several sources which       indicated that certain inmates were behind the organisation       of this, among them (the applicant), and that they       seriously threatened other inmates in order to obtain their       participation. On the basis of this, (the applicant), among       others, was removed from the prison community cf. section       53, subsection 4 second sentence no. 1 of the prison rules,       and placed in a special wing.         Considering the situation as a whole (the applicant) must       be considered as having a particularly negative influence       on the other inmates' prison conditions and it is thus       decided to place him in the security wing cf. section 1       point c of the placement rules ..."         The applicant remained in the security wing until 17 September 1990. It appears that during this period he was refused telephone contact with his sons from June until December 1989 and certain problems arose as to the access to documents and other personal belongings.         Due to the circumstances relating to his placement in the security wing at Ullersmo the applicant, assisted by counsel, instituted proceedings before the Eidsvoll District Court (herredsrett) on 25 February 1990 against   the State represented by the Ministry of Justice maintaining, inter alia, that his placement in the security wing was illegal and that the lack of telephone contact with his children between June and December 1989 violated Article 8 of the Convention. He furthermore maintained that he did not have access to all his documents and referred to the fact that he did not receive the Commission's letter of 28 June 1988 until 14 March 1989. In respect of the two last points the applicant referred to Article 25 read in conjunction with Article 8 of the Convention.         By judgment of 13 December 1991 the District Court found that the State, represented by the Ministry of Justice, had obstructed the applicant's right of individual petition and shown lack of respect for his correspondence due to the fact that he had not received the Commission's letter of 28 June 1988 until 14 March 1989. Furthermore, the Court found that the applicant had been prevented from complaining effectively to the Commission during certain periods when he had not had access to all his documents. The Court, however, rejected the remainder of the applicant's complaints.         Both the applicant and the Ministry of Justice appealed against this judgment. On 18 January 1993 the Eidsivating High Court rejected all the complaints submitted by the applicant. In its judgment the Court found it established that the applicant had been treated in accordance with the applicable prison rules and furthermore stated inter alia as follows:         (translation)       "...       3.    The Commission's letter of 28 June 1988       ...       The Court finds that the Commission's letter did not reach       (the applicant) until 14 March 1989. (The applicant) has       not maintained that the letter was intentionally withheld.       The Court finds that the delay was caused by mistakes. The       prison authorities have expressed their regrets to (the       applicant).         The Court does not consider that the delay has influenced       (the applicant's) subsequent work on his petition.       Accordingly, the State has not objectively obstructed the       right of individual petition under Article 25 para. 1 of       the Convention.         4.    (The applicant's) access to documents       ...       The Court finds that the volume of documents possessed by       (the applicant) while he was serving his sentence was of       such magnitude that no cell at Ullersmo could contain them       without disturbing (the applicant's) prison conditions and       making necessary control impossible. Neither did (the       applicant) want to have all documents at once. The Court       furthermore finds that the documents, during (the       applicant's) stay in the security wing, were transferred to       the wing's store room when (the applicant asked for it). In       so far as (the applicant) managed only to a certain extent       to survey and to get access to all documents the Court       finds that this was due to practical difficulties. These       difficulties were subsequently overcome. The prison       authorities and the prison staff have not hindered (the       applicant) in his right of individual petition. The       problems with the documents were not of any real       importance. It was not until (the applicant) at a later       stage was assisted by counsel and was granted leaves of       absence in order to obtain further material that a rational       preparation of the case could be made.         On this basis the Court finds that the State has not acted       contrary to Article 8 or Article 25 of the Convention."         On 6 September 1993 the applicant appealed against this judgment to the Supreme Court. In his appeal he maintained that it was contrary to Article 8 of the Convention to refuse telephone contact with his children from June until December 1989 and contrary to Article 8 read in conjunction with Article 25 of the Convention that he did not receive the Commission's letter of 28 June 1988 until 14 March 1989.         On 3 January 1994 the Appeals Selection Committee of the Supreme Court refused leave to appeal.   COMPLAINTS         In relation to the criminal proceedings against him the applicant maintains that the extensive press coverage was mainly based on statements made by the police and the prosecution. He complains that the statements and the way in which they were used amount to the presumption of his being held guilty of crimes which were not covered by the subsequent indictment. Thus the applicant maintains that the behaviour of the police and the prosecution prior to his conviction constituted a violation of Article 6 para. 2 of the Convention.         The applicant furthermore maintains that press coverage in general and the entire atmosphere surrounding narcotics cases in Norway are likely to influence potential jurors to the detriment of the accused and that he did not have any practical means of participating in the selection of the jury. The applicant considers that this amounts to a violation of Article 6 para. 1 of the Convention.         Under Article 6 para. 3 (d) of the Convention the applicant complains that certain earlier statements from a co-accused were read out in court without giving the defence the opportunity of putting questions to this person.         Finally, the applicant maintains that the presiding judge's instructions to the jury showed bias against him contrary to Article 6 para. 1 of the Convention.         Under Article 2 of Protocol No. 7 to the Convention the applicant complains of the fact that the Appeals Selection Committee refused leave to appeal to the Supreme Court. He maintains that thereby he did not get a review of his conviction or sentence within the meaning of this provision.   Finally, the applicant complains that by turning down his request to reopen his case the Supreme Court violated Article 6 of the Convention.         In respect of his prison conditions the applicant complains, under Article 8 of the Convention, that he could not make telephone calls to or receive such calls from his two sons while at Ullersmo from June until December 1989.         He furthermore complains that a letter from the Commission was delayed for approximately 81/2 months. He maintains that this obstructed his right to submit an application to the Commission contrary to Article 8 read in conjunction with Article 25 of the Convention.   THE LAW   1.     The applicant complains that the extensive coverage by the Norwegian mass media was for a great part based on statements made by the police and the prosecution. The statements and the extent to which they were made and used amounted, in the applicant's view, to a presumption of his being held guilty before he was convicted and, thus, to a violation of Article 6 para. 2 (Art. 6-2) of the Convention which reads as follows:         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Commission notes that the applicant apparently did not raise the issue of media coverage in the criminal proceedings against him. However, it may be left open whether the applicant in such circumstances has exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention because the complaint is in any event inadmissible for the following reasons.         The Commission has accepted that in some cases a virulent press campaign can adversely affect the fairness of a trial and involve the State's responsibility, particularly where it is sparked off by one of the State's organs (cf., for example, No. 10486/83, Hauschildt v. Denmark, Dec. 9.10.86, D.R. 49 p. 86 with further references). Furthermore, the Commission and the Court of Human Rights have held that the presumption of innocence is not limited to a procedural guarantee but requires that no representative of the State shall declare a person guilty of an offence before his guilt is established by a court. On the other hand, this does not mean that the authorities may not inform the public about criminal investigations. They do not violate Article 6 para. 2 (Art. 6-2) if they state that a suspicion exists, that people have been arrested, that they have confessed, etc. What is excluded, however, is a formal declaration that somebody is guilty (cf. Eur. Court H.R., Allenet de Ribemont judgment of 10 February 1995, Series A no. 308, paras. 35-38).         The applicant maintains that nearly all the newspaper articles were prejudiced and based on biased information given by the police and the prosecution which allegedly caused the newspapers to publish false allegations which never resulted in any indictment. The Commission considers, however, that an interest by the press must be expected after the discovery of an important drug case and the question whether the alleged information released by the police or prosecution to the mass media was contrary to the presumption of innocence depends on the content of the information.         The Commission has taken note of the newspaper articles concerning the applicant's case as submitted by him and finds that the case was indeed subjected to an extensive press coverage. However, the Commission does not find it established that this information had any impact on the outcome of the trial. Furthermore, the Commission does not find it established that the newspaper articles contained an affirmation of guilt expressed by the police or the prosecution contrary to the presumption of innocence. Thus, the Commission does not consider it established that the authorities made statements to the press to the effect that the applicant was guilty, thereby affecting his right to be presumed innocent.         An examination of this complaint does not, therefore, reveal any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Under Article 6 (Art. 6) of the Convention the applicant has furthermore submitted a number of complaints relating to the fairness of his trial. He complains that the jury was unduly influenced and its selection made to his detriment, that he was prevented from examining a witness and that the summing up of the presiding judge was biased against him.         However, the Commission recalls that under the terms of Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Commission to have been raised, at least in substance, during the proceedings in question. On this point the Commission refers to its constant case-law (cf. for example, No. 6861/75, Dec. 14.7.75, D.R. 3 p. 147; Nos. 5573/72 and 5670/72, Dec. 16.7.76, D.R. 7 p. 8).         In this case the applicant failed to raise the issues mentioned above during the trial in the District Court. Moreover, the applicant did not base his appeal to the Supreme Court on these points. His appeal was only directed against the sentence imposed. Thus, the applicant did not at any moment during his criminal case, in substance, raise the issues which he now raises before the Commission. Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising his complaints in the proceedings referred to.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.     As regards the criminal case against him the applicant also complains of the fact that the Appeals Selection Committee, on 19 November 1987, refused leave to appeal to the Supreme Court against the judgment of the High Court of 9 October 1987. He maintains that thereby he was not afforded a review of his conviction or sentence within the meaning of Article 2 of Protocol No. 7 (P7-2) to the Convention. This provision reads as follows:         "1.   Everyone convicted of a criminal offence by a tribunal       shall have the right to have his conviction or sentence       reviewed by a higher tribunal.   The exercise of this right,       including the grounds on which it may be exercised, shall       be governed by law.         2.    This right may be subject to exceptions in regard to       offences of a minor character, as prescribed by law, or in       cases in which the person concerned was tried in the first       instance by the higher tribunal or was convicted following       an appeal against acquittal."         However, the Commission recalls that the events concerned took place prior to 1 January 1989 which is the date of the entry into force of Protocol No. 7 (P7) to the Convention with respect to Norway. Furthermore, in accordance with the generally recognised rules of international law, the Convention or its Protocols only govern, for each Contracting Party, facts subsequent to their entry into force with respect to that Party (see e.g. No. 9453/81, Dec. 13.12.82, D.R. 31 p. 204).         It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.     The applicant also complains, under Article 6 (Art. 6) of the Convention, that his claim for a retrial was refused. However, under Article 25 para. 1 (Art. 25-1) of the Convention, it is only the alleged violation of one of the rights and freedoms set out in the Convention that can be the subject of an application presented by a person, non-governmental organisation or group of individuals. With regard to the present complaint, no right to a retrial is as such included among the rights and freedoms guaranteed by the Convention. Furthermore, in accordance with the Commission's established case-law, proceedings concerning applications for retrial fall outside the scope of Article 6 (Art. 6) of the Convention, since a person applying for a retrial, having been finally convicted of a criminal offence, is no longer a person charged with that offence within the meaning of that Article (see e.g. No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171).         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   5.     In respect of his prison conditions the applicant complains that his right to respect for his family life and correspondence has been unjustifiably interfered with. He refers in this respect to the prohibition against receiving telephone calls from or making such calls to his two children during six months and to the fact that the letter from the Commission of 28 June 1988 was not delivered to him until 14 March 1989 and claims that he was thereby prevented from submitting an application to the Commission. He invokes Articles 8 and 25 (Art. 8, 25) of the Convention which, as far as relevant, provide as follows:         Article 8 (Art. 8)         "1.   Everyone has the right to respect for his private and            family life, his home and his correspondence.         2.    There shall be no interference by a public authority with       the exercise of this right except such as is in accordance with       the law and is necessary in a democratic society in the interests       of national security, public safety or the economic well-being       of the country, for the prevention of disorder or crime, for the       protection of health or morals, or for the protection of the       rights and freedoms of others."         Article 25 (Art. 25)         "1.   The Commission may receive petitions addressed to the       Secretary General of the Council of Europe from any person,       ... provided that the High Contracting Party against which       the complaint has been lodged has declared that it       recognises the competence of the Commission to receive such       petitions.   Those of the High Contracting Parties who have       made such a declaration undertake not to hinder in any way       the effective exercise of this right."         a. The Commission notes that while serving a sentence in a prison is by its nature a limitation on private and family life, it is an essential part of a prisoner's right to respect for family life that prison authorities assist him in maintaining effective contact with his close family members (cf., mutatis mutandis, No. 9054/80, Dec. 8.10.82, D.R. 30 p. 113).         In the present case, however, the Commission recalls that the decisions to place the applicant in a security wing, where the conditions for the prisoners are less favourable, were taken by the prison authorities as a consequence of the applicant's behaviour and the legality of these decisions was later examined by the courts which found the transfer as well as the restrictions imposed in this section to be within the relevant rules. The Commission furthermore recalls that the applicant's ex-wife had sole custody of the children and that, therefore, his contacts with them were also dependent on her consent. The Commission finds that it can be left open whether the children at all made any telephone calls during the period in question because, given that the restriction was only imposed for a limited period and that communication by letter was possible, subject to the consent of the custody holder, the Commission finds that the restriction in question does not in the circumstances disclose any lack of respect for the applicant's private or family life.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         b. In so far as the applicant complains that the Commission's letter was delayed approximately 81/2 months, it is recalled that in the present case there was no decision as to interception of the applicant's mail or any other interference with his correspondence and, furthermore, it does not appear that the authorities intentionally withheld the letter from the Commission. The delay appears to have been the result of some unfortunate incidents following the applicant's transfers to different prisons for which the authorities have already presented their regrets to him.         In these circumstances the Commission finds that there has been no interference with the applicant's right to respect for his correspondence and his complaint is accordingly manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         c. As to the applicant's reference to Article 25 para. 1 (Art. 25-1) in fine of the Convention the Commission, in the light of the above conclusion, finds no indication that the applicant has been hindered in the effective exercise of his right of individual petition. The Commission therefore concludes that it need take no further action in respect of the alleged interference with this right.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE;         DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged       interference with the effective exercise of the right of       individual petition.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (H. DANELIUS)